Conservative and Unionist Party v Election Commissioner & Ors

On the face of it, this appeal concerns the construction of technical provisions contained within the Representation of the People Act 1983 (“the 1983 Act”) in connection with the costs of an election petition and the inter-relationship between those provisions and the wider jurisdiction relating to costs set out in the Senior Courts Act 1981 (“the 1981 Act”) and the Civil Procedure Rules. In the appellant’s skeleton argument, the point is made that underlying this apparently dry issue of construction is a far more significant concern relating to the policing of electoral probity and the responsibility that political parties have in relation to the costs of any challenge to that probity.

The issue arises in this way. On 3 May 2007, there was an election in the Central Borough Ward of Slough Borough Council which was contested by five candidates including Eshaq Khan for the Conservative Party and Lydia Simmons for the Labour Party. After the count, it appeared that Ms Simmons had come second to Mr Khan who had won with a majority of 120 votes. Thereafter Ms Simmons presented an election petition alleging corrupt and illegal practices relating to the entry of non-existent people on the electoral roll who had then applied for postal votes. After a 10 day hearing at which both sides were represented by leading counsel, Mr Richard Mawrey QC, the Election Commissioner assigned under s. 130(3)(b) of the 1983 Act (“the Commissioner”), determined that Mr Khan was guilty of such practices and he declared Mr Khan’s election void. He also concluded that a number of Mr Khan’s supporters were similarly guilty but it is important to emphasise immediately that it has never been suggested that Mr Khan’s official agent or the Conservative Party or the Slough Conservative Association either were party to the frauds or had known anything about them.

By his judgment dated 18 March 2008, in addition to making the determinations to which I have referred, the Commissioner issued a Report to the High Court under s. 145(3) of the 1983 Act and ordered Mr Khan to pay Ms Simmons’ costs of the petition on an indemnity basis; these costs were subsequently assessed at £215,775.95 and, on 13 May 2008, a default costs judgment was issued for that amount (together with £130 being fixed costs). Attempts to enforce payment were unsuccessful and ultimately, Mr Khan was adjudged bankrupt with no apparent prospect of any distribution of funds to creditors. In addition, arising out of the election and its aftermath, Mr Khan was subsequently prosecuted; he was convicted and sentenced to a term of imprisonment.

Ms Simmons and her advisers then looked further for payment of the costs. They learned that an insurance policy effected by the Slough Conservative Association facilitated through Conservative Party Campaign Headquarters (“CCHQ”), had provided partial funding for Mr Khan’s defence. They then sought an order from the Commissioner for disclosure from Mr Khan and his solicitors (“Penningtons”) of information relating to the insurance. Penningtons raised the question whether, as an election commissioner, Mr Mawrey QC was functus officio. By judgment dated 9 October 2008, he concluded that he was not but observed that, in any event, as a deputy judge of the Queen’s Bench Division, he had jurisdiction to make “an order ancillary to a possible future application for payment of costs by a non party”. He made the order sought.

Penningtons complied with that order and, thereafter, Ms Simmons applied (both to the Commissioner in that capacity but also in the standard form for such notices in the High Court) to join The Conservative and Unionist Party (“the Conservative Party”) and the Slough Conservative Association to the election petition for the purpose of obtaining an order for costs. At that stage, solicitors for the Conservative Party (who had not previously been acting in the litigation) argued that Mr Mawrey was wrong to assume jurisdiction in his capacity as the Commissioner although the jurisdiction of the High Court to make such an order was accepted. Concern was also expressed whether it was appropriate for him to hear the matter given a number of his expressed views including comments about political parties funding the costs of litigants in an election petition. In the event, the Commissioner made it clear that he would follow his earlier judgment as to his jurisdiction as Election Commissioner but would hear the matter both in that capacity and as a deputy Judge of the Queen’s Bench Division.

The Conservative Party was aggrieved that the Commissioner was not prepared to hear argument as to his jurisdiction as Election Commissioner notwithstanding that it had not had the opportunity to challenge the view that he expressed in his 9 October judgment. As a result, proceedings for judicial review were commenced in which it was contended that (a) an order for costs could not be made against an entity that was not a party to the election petition; (b) in any event, although this issue could be determined in the High Court, the role prescribed by the 1983 Act for the Election Commissioner had concluded; and even if both those submissions were wrong (c) in the light of his earlier observations, it was not appropriate for this particular Commissioner to hear the application given his previously expressed views.

The application came before Keith J who, following a two day hearing, accepted the proposition that the law did not permit an adverse order for the costs of an election petition to be made against a person or entity who was not a party to that petition. On the second issue, he considered himself bound by decisions of the Divisional Court and Court of Appeal in R. v. Cripps ex parte Muldoon to conclude that the Election Court ceased to exist when it made its determination under s. 145 of the 1983 Act. He declined to decide the third issue (on which Ms Simmons took a neutral stance). With the leave of Laws LJ, Ms Simmons appeals to this court against both adverse rulings; the Conservative Party seeks to raise the issue of whether the Commissioner should have recused himelf.

To understand the significance of the dispute (and the reason for the attitude of the Conservative Party to the Commissioner’s further consideration of it), it is necessary to say something more of the factual background which starts not with this election in Slough but with an earlier 2004 election in Birmingham in respect of which Mr Mawrey was also the election commissioner. He set out the outline of the problems of electoral fraud in that election in his judgment of 18 March 2008 in relation to the Slough election. In short, in Birmingham, he found that sections of the local Labour Party:

“...embarked on a massive programme of electoral fraud in which literally thousands of bogus postal votes were cast for the Labour candidates, securing their election by suspiciously large majorities in a year when Labour otherwise fared poorly.”

The Commissioner made it clear that there was no evidence that the national Labour Party had known of or connived in the Birmingham frauds but went on to observe that he identified no fewer than fourteen types of electoral fraud committed in the two wards concerned, commenting that postal voting on demand, however well intentioned, “had opened the floodgates to serious, organised and extensive fraud of frightening proportions”.

The Commissioner went on, in the Birmingham judgment, to criticise reassurance by the Government that the systems in place to deal with allegations of electoral fraud were “clearly working” by commenting that this “indicates a state not simply of complacency but of denial”. In the Slough judgment with which we are concerned, he considered the Electoral Administration Act 2006 which he described as “limited and unsatisfactory”, on the basis that it dealt with only one of the fourteen types of fraud in the Birmingham case but left “untouched” the other thirteen along with a fifteenth (described as ‘roll-stuffing’, that is to say casting votes by using names which appear on the Register but refer to people who have no right to be on it because they have moved away, died or been fraudulently added).

Against that background, he found that Mr Khan and his supporters had caused the names of non-existent people to be entered on the electoral register for the ward and had then applied for postal votes in their names. Further, forged tenancy agreements had been used in an attempt to establish the contrary: this was “a concerted campaign to resist the challenges to the Register”. He ended his judgment by reference back to the concerns he expressed in 2005 by saying:

“Despite the 2006 Act, the opportunities for easy and effective electoral fraud remain substantially as they were on 4^th April 2005 [the date of the Birmingham judgment].”

In his report to the Court, the Commissioner was, in the words of Keith J, scathing in his remarks. He said:

“I must report that neither the present system of voter registration nor the present system of postal voting contains any effective safeguards against the kind of fraud [sic] that have been perpetrated at the election to which this Petition relates...

The present system of voter registration can no longer be justified. It contains no safeguards whatsoever. ... The ease with which false names can be entered on the Register for the purposes of vote fraud is unacceptable. ..

The system of postal voting on demand remains as vulnerable to systematic and widespread fraud as it was when I reported to the High Court ... on 4^th April 2005. The reforms introduced by the Electoral Administration Act 2006 have failed to address all but one of the frauds ... [T]he changes brought about by the 2006 Act may be said to have done as much harm as good. ..

The election petition is both inadequate and inappropriate as a method of controlling fraud. For electoral probity to be policed by what are, in effect, private civil law actions brought at the expense of the litigant, cannot be acceptable.”

After a default costs certificate was issued in the total sum of £215,905.95 and it was discovered that Mr Khan had been declared bankrupt with no prospect of a distribution of funds to the creditors, Ms Simmons investigated the funding of his defence to the petition. Enquiries of Penningtons led to the disclosure that their fees had been paid by insurers up to the limit of the policy and that they were without further instructions.

In the meantime, an approach to the Conservative Party and the Slough Conservative Association, led to further disclosure that partial funding of the defence came from insurance taken out by the Slough Conservative Association the premiums for which had been collected by the CCHQ and sent to brokers. It was also made clear that, upon intimation of a potential claim, underwriters instruct Penningtons as designated solicitors under the policy who, with the association’s permission, “keep CCHQ informed of the incurring of costs from time to time from an insurance-cost point of view, as claims have a detrimental effect on further policy premiums”. Finally, Ms Simmons was told that when it became clear that the limit of insurance cover was likely to be exceeded, a request to CCHQ for the excess was refused. Both the Conservative Party and the Slough Conservative Association declined to meet Ms Simmons’ costs.

The result was that, on 14 August 2008, Ms Simmons’ solicitors made application in the High Court standard form (asking that the matter be determined by the Commissioner) for an order that Mr Khan and Penningtons disclose the insurance policy under which his defence was funded and answer specific questions about the funding of his defence. The Commissioner was requested to determine the application without a hearing based on written submissions from Mr Gavin Millar QC (who had appeared for Ms Simmons on the hearing of the petition as he has both before Keith J and on this appeal) together with representations from Penningtons. Neither the Conservative Party nor the Slough Conservative Association was involved: they were not parties to the application and no relief was sought against them. Bearing in mind ex parte Muldoon, however, Mr Millar specifically submitted that if the Commissioner thought that he may be functus officio as the election commissioner, he could make the order sought in the High Court in his capacity as a deputy High Court judge.

Although it does not appear that separate High Court proceedings were commenced, the Commissioner acknowledged that he was a deputy High Court judge so that, in his view, he did have the necessary power and jurisdiction to determine the matter with the result that he approached it wearing “the twin hats” of election commissioner and deputy Judge of the Queen’s Bench Division. He concluded, however, that he did have jurisdiction as election commissioner to consider an application for what he described as “an order ancillary to a possible future application for payment of costs by a non-party” but that, if he was wrong, being a deputy High Court judge “should suffice to clothe me with jurisdiction”.

The Commissioner further decided to make the order sought but, in the course of his judgment dated 9 October 2008, made observations which went beyond the issue then before him. He said:

“… [I]t would probably come as somewhat of a surprise to the general public that, where an official candidate of a national political party is the petitioner or the respondent to an election petition, that political party does not automatically assume responsibility for the costs of its own candidate in promoting or defending the petition and responsibility for the costs of the other side in the event of defeat. Given that the political party stands to gain or lose by the result of the petition, some degree of responsibility might be expected. This was especially the case in Slough where the success of Eshaq Khan in the 2007 election meant that the Conservatives had a small but controlling majority on Slough Council and his removal from office would (at least pending the by-election) return the authority into being a ‘hung council’.

Having received no submissions and having carried out no research on the subject, I simply express interest in the question whether courts in the past have considered the extent to which an officially adopted candidate might expose the political party who adopted him to a degree of vicarious liability for any misdeeds on his part in the course of seeking election. It is not to be thought that I am necessarily encouraging Ms Simmons to attempt to mine a new lode of jurisprudence but, given the nature of the submissions on her behalf by Mr Millar QC, the question might arise in some form were this matter to be taken further.”

Penningtons produced a copy of part of the insurance policy which provided legal expenses cover up to £100,000 for each election petition subject to the insurer’s satisfaction that “there are reasonable prospects of achieving the remedy or result sought by the insured in the legal proceedings” (the insured being defined as the Conservative Party or any of its official candidates or agents). It transpires that when the petition was served, CCHQ referred the Slough Conservative Association to Penningtons who contacted Mr Khan and received his instructions both to act and as to the case. Penningtons also received what was described as “input” from Mr Khan’s official agent, the Chairman of the Slough Conservative Association and the Conservative Party but the relevant partner of the firm made it clear that none of them had exercised “control” over the proceedings.

Up to this moment, the only parties to the election petition had been Ms Simmons and Mr Khan because it is only electors and candidates who may present an election petition and only the successful candidate whose election is being questioned and the returning officer who may be respondents: see s. 128(1) and (2) of the 1983 Act. Having decided to seek an order that the Conservative Party and/or the Slough Conservative Association meet the costs of the petition, on 3 February 2009, Ms Simmons applied to the High Court in the standard form applicable to the Queen’s Bench Division for an order that the Chairmen of the Conservative Party and the Slough Conservative Association as representatives of their respective organisations be added as respondents to the petition “for the purposes of costs only” and that those bodies pay the costs of the petition. She also requested that the application be determined by the Commissioner and sought directions for the hearing.

Following service of this application (and prior to its determination), solicitors for the Conservative Party repeated earlier contentions that the Commissioner had been wrong to conclude that he continued to have jurisdiction as the election commissioner and that his ruling could not bind the Conservative Party as it had not been, and at that time, still was not, a party to the petition. At that stage, however, the solicitors accepted that the High Court had jurisdiction to hear the matter and, while expressing concern about his comments relating to the payment of costs by political parties, did not then object to the Commissioner determining it as a deputy High Court judge. Ms Simmons’ solicitors maintained that he could determine it in both capacities and by e-mail dated 9 March 2009, the Commissioner (to whom the correspondence had been copied) agreed that he could do so observing that the parties “will have to consider to whom they wish to appeal any adverse decision”.

On 16 March, the Commissioner recognised that, at that stage, the only two parties to the petition remained Ms Simmons and Mr Khan and that if anyone else was to be bound by any decision, the issue of the parties had to be sorted out. He also acknowledged that there was a dispute as to his jurisdiction and that, “until they are parties ... their position was in limbo”.

Meanwhile, the Conservative Party was seeking leading counsel’s advice. Also on 16 March 2009, Mr David Holgate QC advised that the Commissioner was wrong to decide that he was free to differ from the approach in Muldoon to the effect that the Commissioner was functus officio after he had concluded the formalities required by s. 145 of the 1983 Act. He went on to advise that this issue of jurisdiction to make an order for costs against a non-party should be decided by a High Court judge and that, in any event, in the light of what the Commissioner had said, there were grounds upon which it would be appropriate for him to recuse himself.

Thereafter, the Commissioner’s continued involvement in the issue was opposed and a letter was written to the Administrative Court, with a copy of Mr Holgate’s advice, asking for the matter to be considered by one of the High Court judges on the rota for the trial of parliamentary election petitions. This caused Ms Simmons’ solicitors to write (contrary to what might have been assumed, based on the form of the application and observations of Mr Millar accepted by the Commissioner) to the effect that the application had only been made to the election court and that it was for the election court to determine whether it still had jurisdiction.

The Commissioner (to whom copies of the correspondence were sent) did not wait to respond. By e-mail dated 17 March 2009, he referred to his 9 October 2008 judgment in which he considered that he had jurisdiction both as an election commissioner and a deputy High Court Judge although he did then recognise that the Conservative Party was not bound by the decision. As to whether he should recuse himself (in respect of which there had been no application, leading counsel having advised in careful language only that there were grounds upon which it would be appropriate for him to recuse himself), he reviewed what he had said, considered the suggestion of bias (which had not been made) to be “misconceived and, to be frank, somewhat offensive” and said, without waiting for an application or hearing argument, that he did not intend to recuse himself.

In response, solicitors to the Conservative Party noted that, on 9 March 2009, he had stated that he would follow his October judgment and that he had done so without hearing their client (or the Slough Conservative Association) and without being asked to make such a ruling; neither had an application been made that he recuse himself. It was also made clear that the application to join the Conservative Party had only been served on 6 February 2009. Thereafter, on 24 March, a pre-action letter was sent intimating judicial review.

The Commissioner replied to the pre-action letter on the next day. He then appeared to suggest (contrary to his e-mail of 17 March) that the Conservative Party would be bound by the decision as to jurisdiction, observing:

“That decision could have been challenged by either of the parties seeking an appellate or administrative law remedy. Given that it had been the stated intention of the petitioner before I made the ruling to attempt to pursue the enforcement of her costs order against the Slough Conservative Association and/or the Conservative Party if I were to rule that I retained jurisdiction, I consider that either of those organisations would have had the appropriate locus standi to mount a challenge to my ruling at the time.

Having made my ruling in October, I cannot see any proper basis for me now to ‘accept’ that the Election Court can make no further order. I have ruled that it can and it would be for an appellate or administrative court to say that I was wrong.”

It is difficult to see why the Commissioner changed his approach bearing in mind that he had not heard submissions from those affected by the ruling that he had given but, in those circumstances, these proceedings for judicial review were issued. As Keith J observed, in the normal course, a number of these matters would first fall to be decided after such a full hearing but, the issues having been fully ventilated, I agree that it was appropriate that he grasp the nettle and determine them. That is also the task that we now undertake.

In Part III of the Act (“Legal Proceedings”) and under the general heading “Costs of petition”, s. 154 of the 1983 Act provides:

“(1)

All costs of and incidental to the presentation of an election petition and the proceedings consequent on it, except such as are by this Act otherwise provided for, shall be defrayed by the parties to the petition in such manner and in such proportions as the election court or High Court may determine.”

(2)

In particular —

(a)

any costs which in the opinion of the election court or High Court have been caused by vexatious conduct, unfounded allegations or unfounded objections on the part either of the petitioner or of the respondent, and

(b)

any needless expense incurred or caused on the part of the petitioner or respondent,

may be ordered to be defrayed by the parties by whom it has been incurred or caused whether or not they are on the whole successful.”

The parties to the petition may only be “four or more persons who voted as electors at the election or had a right so to vote” or “a person alleging himself to have been a candidate at the election” as the petitioners and “a person whose election is questioned by the petition” along with “any returning officer of whose conduct the petition complains” as respondents (see s. 128 of the 1983 Act). The exceptions otherwise provided by the Act include the expense of providing accommodation (s. 131) and the cost of the commissioner and any staff (s. 132) although, unusually, these costs can be the subject of an order for reimbursement by the petitioner if the claim is frivolous and vexatious or by any respondent guilty of corrupt practices at the election (s. 133).

Under the heading “Further provision as to costs”, s. 156 also prescribes a mechanism in two slightly different circumstances for requiring costs to be paid by others who are not parties to the petition but whose conduct has been impugned during the hearing. It is in these terms:

“(1)

Where upon the trial of an election petition it appears to the election court—

(a)

that a corrupt practice has not been proved to have been committed in reference to the election by or with the knowledge and consent of the respondent to the petition, and

(b)

that the respondent took all reasonable means to prevent corrupt practices being committed on his behalf, the court may, subject to the provisions of subsection (5) below, make such order with respect to the whole or part of the costs of the petition as is mentioned in that subsection. …

(5)

If it appears to the court that any person or persons is or are proved, whether by providing money or otherwise, to have been extensively engaged in corrupt practices, or to have encouraged or promoted extensive corrupt practices in reference to the election, the court may, after giving that person or those persons an opportunity of being heard …[including the examination and cross examination of witnesses] to show cause why the order should not be made—

(a)

order the whole or part of the costs to be paid by that person, or those persons or any of them, and

(b)

order that if the costs cannot be recovered from one or more of those persons they shall be paid by some other of those persons or by either of the parties to the petition. …

(6)

Where any person appears to the court to have been guilty of a corrupt or illegal practice, the court may, after giving that person an opportunity of making a statement to show why the order should not be made, order the whole or any part of the costs of or incidental to any proceedings before the court in relation to that offence or to that person to be paid by that person to such person or persons as the court may direct.”

Thus, the statutory scheme allows litigation costs to be ordered against a party or, in specific circumstances, anyone else who is found guilty of a corrupt or illegal practice and/or (assuming the respondent to have been acquitted and to have taken all reasonable means to prevent corrupt practices being committed on his behalf) who might be described as a facilitator of corrupt or illegal practice. Unlike any costs that may be ordered in the High Court, it also permits orders to be made in relation to the costs incurred in housing the trial and running the hearing itself.

Mr Millar submits that this provision does not give the election court its power to award costs but is only a procedural provision, essentially declaratory, because there may be numerous parties (i.e. four or more individual electors, up to three successful candidates etc) and different outcomes on different issues. He argues that the power to award costs comes from s. 123(2) of the 1983 Act for a Parliamentary election court and s. 130(5) for a local election court. This is said to be apparent from a study of the legislative background and the way in which jurisdiction (in relation to Parliamentary election petitions) was relinquished by committees of the House of Commons (albeit leaving some residual principles in place) to the High Court and thence to the election court. Thus, in relation to the constitution of an election court, he points to s. 123(2) of the Act (reflecting s. 29 of the Parliamentary Elections Act 1868) which provides, in relation to a the trial of a Parliamentary election petition by what is referred to as an “election court”, that this court “has, subject to the provisions of this Act, the same powers, jurisdiction and authority as a judge of the High Court”; for a local election petition (see s. 130(5) of the 1983 Act based on s. 92(6) of the Municipal Corporations Act 1882), that election court “has for the purposes of the trial the same powers and privileges as a judge on the trial of a parliamentary election petition”.

This view is reinforced, so it is submitted, by a consideration of the position of the High Court when dealing with an election petition. Section s. 157(3) of the 1983 Act retains for the High Court “the same powers, jurisdiction and authority with respect to an election petition and the proceedings on it as if the petition was an ordinary action within its jurisdiction”.

These later powers, Mr Millar argues, are ultimately determinative of the power of the election court and demonstrate a legislative intention to include the power contained within s. 51(1) of the 1981 Act which provides “subject to the provisions of this or any other enactment and to rules of court” that costs in the Court of Appeal (Civil Division), the High Court and the county court are in the discretion of the court which (by s.51(3) of the Act) has “full power to determine by whom and to what extent the costs are to be paid”. Bearing in mind that, in Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965, the House of Lords held that this language was wide enough to empower the court to order a non-party to proceedings to pay costs, the result, Mr Millar submits, is that the jurisdiction of the election court (with its powers derived from the High Court) is similarly empowered.

It is important to put the powers contained in the 1983 Act into context. Under the general heading “Questioning of a parliamentary election”, sections 120-125 set out the method, presentation of petition, time, constitution of the election court and place of trial (which is, by s. 123, specifically “subject to the provisions of this Act), judges’ expenses and attendance of a House of Commons shorthand writer. Sections 127-135A make similar provisions for local election petitions but including the additional powers as to reimbursement of the expenses of the election court to which I have already referred. The next set of provisions (sections 136-157) deal with the procedure on all election petitions and they are followed by provisions on the consequences of finding by the election court of corrupt or illegal practice.

The statutory scheme was discussed by this court in Ahmed v Kennedy [2002] EWCA Civ 1793, [2003] 1 WLR 1820, which concerned time limits for service of documents dealing with the provision of security for costs. Mr Millar, appearing in the case then submitted that Part III of the 1983 Act (including all the above provisions) and the Rules made under it together comprised a discrete and purpose-built statutory scheme with the result that there was no power to extend time notwithstanding the general discretion in the Civil Procedure Rules not least because, in that case, Rule 19(1) of the Election Petition Rules 1960 (as amended) specifically provided that time in relation to this provision “shall not be enlarged by order or otherwise” although the rule goes on to provide that “save as aforesaid rules 2.8 to 2.11 of the Civil Procedure Rules 1998 shall apply to any period of time prescribed by these Rules”.

The court specifically agreed with Mr Millar’s submission as to the scheme covering the role of the High Court so that, as Simon Brown LJ explained, “where the legislation intends to provide for the softening of any mandatory requirement it expressly says so”. He went on (at para. 23):

“[T]he legislation dictates the following hierarchy of provisions: first, Part III of the Act and the Rules made under section 182(1); next the CPR; finally, any residual ‘practice, principle or rule’ of the House of Commons (likely to concern matters such as agency and scrutiny).”

I readily accept that there is no mandatory provision such as Rule 19(1) but, in my judgment, the scheme of the 1983 Act in relation to costs is clear and, when legislated was, both intended to be and in fact, far more extensive than that which prevailed under s. 51 of the 1981 Act and its predecessor legislation. Until Aiden Shipping Co Ltd, save for wasted costs (justified for entirely different reasons), there was no question of the court exercising a jurisdiction in relation to costs over a third party, yet the 1983 Act not only specified circumstances in which such orders could be made, subject to appropriate procedural safeguards, but also allowed local election courts to make orders recovering the costs incurred in setting up and running the court. These wider powers were far more than procedural: they extended the jurisdiction and the fact that, because of Aiden Shipping Co Ltd, the High Court recognises that it has a wider jurisdiction in relation to ordering costs against third parties than hitherto had been appreciated does not affect the position (or the governing principles of law) in any way.

Furthermore, the fact sections 154-156 of the 1983 Act do not expressly prohibit orders for costs against non-parties being made otherwise than in the circumstances set out in s. 156, does not change this analysis. As Keith J explained in language with which I entirely agree (at para. 34):

“[T]he effect of the words ‘except such as are by this Act otherwise provided for’ in section 154(1) is to limit the circumstances in which non-parties can be responsible for costs to the circumstances set out in any provision in the Act, and the only provision in the Act which does that is section 156. I appreciate that statutory provisions should be construed if possible so as to be consistent with legal policy. That includes enabling litigants to be assured that if they are successful they will recover their legal costs, if necessary against non-parties to the litigation in appropriate circumstances if the party against whom the order for costs is made defaults. I appreciate also that statutory provisions should be construed if possible to give effect to the presumed intention of Parliament, and Parliament may be presumed to have wanted litigants not to be deterred from bringing meritorious election petitions by the fear that they will not recover their costs. But these considerations simply cannot overcome the plain words of the exception in section 154(1), to say nothing of the words ‘[s]ubject to the provisions of this or any other enactment’ in section 51(1) of the 1981 Act and the words ‘subject to the provisions of this Act’ in sections 123(2) and 157(3).”

It has never been suggested that there was any basis for pursuing either the Conservative Party or the Slough Conservative Association for costs under the specific provisions of the 1983 Act and, in the circumstances, I believe that Keith J came to the correct conclusion, namely that it is not open to Ms Simmons to seek an order based upon s. 51 of the 1981 Act and Aiden Shipping Co Ltd v Interbulk Ltd. I would dismiss this aspect of the appeal.

The election court is a creature of statute. In relation to the High Court, it is the name given to two judges on the rota for the trial of Parliamentary election petitions who preside at the trial of a particular petition (see s. 123(1) of the 1983 Act). As for local elections, s. 130(1) provides that it consists “of a [person] qualified and appointed as provided by this section”; s. 130(3) requires the judges on the rota to appoint qualified persons and then to assign the petitions to be tried. The section then provides that the election court has “for the purposes of the trial the same powers and privileges as a judge” trying Parliamentary election petitions: see s. 130(5). Thus, the qualified person (in this case, the Commissioner) obtained his vires or power to try the petition from his appointment by the rota judges: the election court has no free-standing statutory responsibilities.

Section 145(1) of the 1983 Act, under the general heading “Procedure on all election petitions” and the specific heading “Conclusion of trial of local election petition” provides:

“At the conclusion of the trial of a petition questioning an election under the local government Act, the election court shall determine whether the person whose election is complained of, or any and what other person, was duly elected, or whether the election was void, and the determination so certified shall be final to all intents as to the matters at issue on the petition.”

Section 145(2) requires the election court “forthwith” to “certify in writing the determination to the High Court”, and sections 145(3) and (4) identify the circumstances in which the election court must or can “at the same time” report various matters to the High Court including corrupt practice and “matters arising in the course of the trial” which “in the judgment of the court ought to be submitted to the High Court”. Thus, the question arises whether by the act of judgment and certification, the election court so authorised had fulfilled its function and ceased to have any further role or remit. The Commissioner took the view (with which, if free from authority, Keith J would have accepted) that this provision does no more than specifiy what the Commissioner must do at the conclusion of the proceedings and did not mandate the “radical conclusion” that once these steps had been taken, the election court ceased to exist.

Mr Millar advances the argument that the Commissioner ought to be able to give his judgment on the issues at stake on the petition (making his report and certificate) and then consider costs at subsequent hearings, such arguments potentially being complex and dependent on the outcome of the judgment. In that regard, he relies on In re Taunton Election Petition, Marshall v. James (1874) LR 9 CP 702 which concerned a Parliamentary election petition, the result of which was the subject of a judgment (which included an order for costs) and a certificate which was signed and sent to Parliament during the morning of 26 January 1874 although it was only received by the Speaker that afternoon after Parliament had been dissolved. The issue was whether the dissolution put an end to the petition so that the order for costs could not be taxed. The decision of the court (Lord Coleridge CJ, Brett and Grove JJ) was that the dissolution of Parliament did not affect the enforceability of the order for costs. Lord Coleridge (who wished to rest his judgment on the facts) made the point that the subject of costs did not form part of the certificate but that once the judgment was pronounced, accompanied by the order for costs, the respondent had a vested right to them. He went on to “strongly incline” to the view that if the judge had taken time to consider costs, he could have done so, observing:

“The 41^st section [of the Parliamentary Elections Act 1868] gives the judge very large and elastic powers over costs and it seems to me to be quite immaterial at what time they are exercised by him.”

Grove J also expressed himself of the view that making an order for costs was “quite independent of the certificate to be sent to the Speaker” and “forms no part of the judgment as to the seat”. It is worth adding that s. 41 of the 1868 Act is in similar language to s. 154(1) of the 1983 Act.

Said to be inconsistent with that decision and, to that extent, argued by Mr Millar to be wrong is R. v. Cripps ex parte Muldoon which wasdecided in the Divisional Court ([1984] 1 QB 68) and then the Court of Appeal ([1984] 1 QB 686). The facts were that an election commissioner, Mr Anthony Cripps QC, had purported to explain many months later what he had meant in an order for costs which he had made when handing down his judgment on the election petition. It was argued that he had had the power to do so under the slip rule (a power conferred on the High Court by Ord. 20 r. 11 of the Rules of the Supreme Court), which was a power which had been conferred on him by the predecessors of sections 130(5) and 123(2), namely sections 115(6) and 110(2) of the Representation of the People Act 1949. In the Divisional Court, giving the judgment of the court of which Mann J was also a member, Robert Goff LJ decided the matter in this way (at 80B-E):

“We accept that the powers of a judge of the High Court include the power to operate the slip rule. However, there must be doubt whether this power was conferred on Mr Cripps under section 115(6) of the Act for the purpose in question. For, once he had made his order, the election court which consisted of him was functus officio and had ceased to exist. Of course, where a High Court judge sitting in the High Court exercises his power under the slip rule to correct accidental errors, he can do so because, although his order has been drawn up, the High Court has not ceased to exist. He can therefore exercise the jurisdiction under R.S.C., Ord. 20, r.11, which is vested in the High Court as such; indeed, it appears to us, if in any particular case the trial judge was not available (for example, because he had died) after the drawing up of the order, another judge of the High Court could exercise the power of the High Court under the slip rule to correct an accidental error. It appears that when an election court has ceased to exist the exercise of powers under the slip rule to correct accidental errors should be made not by the barrister who formerly constituted the election court, but by the High Court by virtue of its powers under section 137(3) of the Act of 1949 …”

In the Court of Appeal (Sir John Donaldson MR, Fox and Stephen Brown LJJ), determined the case on the basis that what Mr Cripps had purported to do went far beyond what the slip rule permitted so that his remarks were “wholly without effect”. In giving the judgment of the court, the Master of the Rolls dealt with the issue in two places. Describing the concept of functus officio, he said (at 694F):

“Most courts continue in existence over a period of time and deal with many different and separate proceedings. Questions arise as to whether and to what extent the court has finally disposed of each proceeding or issue arising in such a proceeding. When it has, the judge who presided is said to have become functus officio, quoad that issue or those proceedings. An election court, or at least one concerned with a petition questioning a local election, is somewhat different. It is brought into existence by the appointment of a barrister to constitute that court and the trial of that petition is the life-work of the court. When that trial has been concluded in accordance with s. 125 of the Act of 1949, not only is the barrister functus officio but the court ceases to exist.”

For my part, I consider this observation to be the clearest identification of the limits beyond which it is not appropriate for an election commissioner to go: his ‘office’ has come to an end because the election court no longer has any authority. As to whether Mr Cripps even had the authority to correct errors under the slip rule, properly so brought, the judgment went on (at 697F):

“It is not … necessary to consider whether on that day he was sitting as ‘Mr Commissioner Cripps’ in or as a local election court or whether his remarks were those of ‘Mr Anthony Cripps QC’ speaking under a misapprehension as to his capacity. Suffice it to say that although by section 115(6) of the Act of 1949 a local election court has ‘for the purposes of the trial … the same powers and privileges as a judge on the trial of a parliamentary election petition’ (our emphasis) which would import the High Court slip rule power, it is probable that these powers are inapplicable once the trial has been concluded by the formalities prescribed by section 125 and that thereafter slips must be corrected by the High Court under the powers contained in section 137(3). However, even if Mr Cripps had been appointed as a deputy High Court judge and invited to exercise the powers of the High Court, for the reasons which we have given, he could not properly have ‘corrected’ the order which he had made in a wholly different capacity.”

Keith J correctly concluded that these remarks were obiter but, in my judgment, they were only expressed in that wayin relation to the power to correct a judgment of the election court under the slip rule. The earlier comments make it clear that the Court of Appeal had no inhibitions about expressing the effect of s. 125 of the 1949 Act (now s. 145 of the 1983 Act): having concluded its business, its ‘life-work’ (so expressed) was over. All that needs to be emphasised in that context is that, by s. 154(1), “its business” specifically included determining the issue of costs.

The Commissioner’s attitude to Muldoon was that the dicta were wrong and that he would decline to follow them. He considered that s. 145(1) “merely” provided for what a commissioner must do at the conclusion of the proceedings and that, in all other respects, by s. 123(2), he retains “the same powers, jurisdiction and authority as a judge of the High Court”. He points to the powers under s. 156 to order costs against persons other than the respondent and s. 160 to name persons engaged in corrupt or illegal practices both of which can follow his judgment, along with additional powers under s. 163 to report a person holding a licence under the Licensing Acts and the powers of remission in s. 174(1). Keith J was impressed by this view and would have agreed although, unlike the Commissioner, he considered himself bound by Muldoon.

I have no doubt that Muldoon bound the Commissioner. Furthermore, provided that it is understood in context and that allowance is made for other statutory functions that an election commissioner has to perform, I reject the criticisms of it. Thus, for my part, I have no difficulty in accepting that the authority of an election commissioner in the election court extends to making an order for costs and to making the ancillary orders to which the Commissioner referred, even if that arises after his judgment and certificate (which does not need to identify the order for costs). Thus, in the usual way, it was open to the Commissioner to hear arguments as to costs having published his draft judgment and then to finalise that judgment and issue a certificate while reserving his decision on costs and other issues to be handed down subsequently. That is because all these issues fall within the terms of the 1983 Act to be decided by the election court.

That is not, however, this case. The Commissioner had made a final order for costs: he had ordered Mr Khan to pay them on an indemnity basis. He had dealt with all aspects of the petition that he was required by the 1983 Act to consider. In those circumstances, the election court and the Commissioner had concluded the business for which it was set up. What happened thereafter was that Ms Simmons wanted the Commissioner to re-open his decision as to costs and to consider making an order against a third party. In my judgment, he did not have the authority to do so.

On the basis that it was entirely academic given his other conclusions, Keith J declined to address this issue. There are, however, a number of features which it is appropriate to address but, in so doing, I start by paying tribute to the commitment which the Commissioner has shown to electoral law, his pro-active approach and the obvious care with which he determined this petition: he has performed a valuable public service.

In the course of performing that service, it must be appreciated that he has expressed himself on topics which go beyond the remit of the challenge which he then had to decide. In identifying the electoral frauds that he did, he was entitled to criticise the response to his Birmingham judgment; he was also entitled to his opinion that “for electoral probity to be policed by what are, in effect, private civil law actions brought at the expense of the litigant, cannot be acceptable”, although that latter view goes somewhat beyond his remit. That comment must, however, be considered together with his later observations, in the context of a potential application to join a political party for the purpose of seeking an order for costs, that “some degree of responsibility might be expected” of a political party in relation to the costs incurred by a successful challenge or defending an unsuccessful challenge and his “expression of interest” in the question whether courts in the past have considered the extent to which an officially adopted candidate might expose the political party who adopted him to a degree of vicarious liability for any misdeeds on his part in the course of seeking election.

Against that background, for my part, I do not consider it surprising that Mr Holgate should advise, in carefully expressed terms, that the Commissioner had crossed “the ill-defined line” (see Locabail (UK) Ltd. v Bayfield Properties Ltd [2000] QB 451 per Lord Bingham CJ at para 88 citing Vakauta v Kelly 167 CLR 568) generating the apprehension that he would not bring an unprejudiced mind to the resolution of the issue. I am not saying that the Commissioner should necessarily have recused himself. What I am clear about, however, is that he was not entitled simply to dismiss the concern, without awaiting a formal application let alone full argument, as “misconceived and … somewhat offensive”. Having regard to my conclusions that it was not open to the Commissioner to utilise s. 51 of 1981 Act in order to found jurisdiction for a costs order against a third party and that, in any event, he no longer had jurisdiction, the business of the election court having been concluded, it is not necessary to go further.

In the circumstances, I would dismiss this appeal.

I agree.

I also agree.